CA8: Nighttime search warrant was justified

A nighttime search warrant could be unreasonable, but this one was not. It was issued by a state judge complying with state law showing a need for a nighttime search, and that complied with the Fourth Amendment. The court indicates that a nighttime search could, in some circumstances, be unreasonable. United States v. Kelley, 652 F.3d 915 (8th Cir. 2011):

The Fourth Amendment protects individuals from unreasonable searches and seizures. Police intrusion into the privacy of one’s home at night was a concern of the common law before the Fourth Amendment was adopted. Reflecting that concern, our first Congress by statute authorized only daytime searches in 1789. See United States ex rel. Boyance v. Myers, 398 F.2d 896, 898 (3d Cir. 1968). In Wilson v. Arkansas, 514 U.S. 927, 934 (1995), a unanimous Supreme Court held that “in some circumstances an officer’s unannounced entry into a home might be unreasonable under the Fourth Amendment,” expressing “little doubt that the Framers of the Fourth Amendment thought that the method of an officer’s entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure.” Although this constitutional issue has received surprisingly little attention in numerous night-time search decisions, we have little doubt that in some circumstances an officer’s night-time entry into a home might be unreasonable under the Fourth Amendment. See Gooding v. United States, 416 U.S. 430, 462-63 (1974) (Marshall, J., dissenting); Jones v. United States, 357 U.S. 493, 498-99 (1958).

“With few exceptions,” the Supreme Court has required that police obtain a warrant before searching a person’s home. Kyllo v. United States, 533 U.S. 27, 31 (2001). Given the long common law and statutory history of requiring that a night- time search of a home be authorized by warrant, when police intend at the time they apply for a warrant to execute the search at night, it is unreasonable under the Fourth Amendment not to disclose that intent to the issuing magistrate and to seek express authorization for the night-time search, as Arkansas Rule 13.2(c) and Federal Rule 41(e)(2)(A)(ii) require. Here, Sergeant Michaels did just that, presenting the state court judge with probable cause to issue a warrant and good cause to authorize an immediate, night-time search. And the warrant expressly authorized execution at any time. Thus, both the warrant and its execution were reasonable under the Fourth Amendment; indeed, they complied with Federal Rule 41. Compare United States v. Harris, 324 F.3d 602, 606 (8th Cir.), cert. denied, 540 U.S. 884 (2003). The motion to suppress was properly denied.